Nyoongar Tent Embassy - 1 Nyoongar Way, Mattagarup
The story to date - 3rd March 2012
Police move in to smash the spirit of Nyoongar Tent Embassy
Gerry Georgatos Indymedia 3rd March 2012
Following Thursday evening when 60 police officers marched into Nyoongar Tent Embassy to pull down and confiscate tents, and which included an arrest, the Western Australian police force flexed its muscle once again on the Friday afternoon on behalf of the Perth City Council and the Barnett state government.
However Nyoongar Tent Embassy will not be out-muscled and are standing strong true to their convictions - The Embassy has set up a mailbox and people who wish to write letters of support can send them to 1 Nyoongar Way, Mattagarup (Heirisson Island), WA 6004.
Embassy stalwart, Iva Hayward-Jackson said, "We have support from all corners of Nyoongar society now." Supporters have been bringing firewood, ice, mosquito repellant and foam mattresses for those at the Embassy.
Perth City Council rangers have erected concrete bollards at the main access point to Heirisson Island in an attempt to stop the growth of the Embassy. Embassy spokesperson, Greg Martin said the council had also blocked off a drinking water fountain at the site.
The Embassy has gained the support of powerful union, the CFMEU. On Friday afternoon union heavyweight Joe McDonald visited the Embassy and offered support and advised the Embassy on how to call on unions for support and how to get legal help.
The confrontations are becoming uglier and dangerous. The Barnett government has upped the ante in trying to shut down Nyoongar Tent Embassy however only to find more Nyoongars and supporters joining, and that support for the Nyoongar rights advocates is building across Perth and WA's south west despite the racial abuse hurled at the protestors from some passing motorists.
More than 60 police surrounded Mattagarup Nyoongar Tent Embassy and police placed concrete pillars at the carpark entrance to block vehicles from entering. Vehicles that were not removed from the reserve by rights activists were towed away.
One vehicle was impounded - the owner said he needed the vehicle to take his sister for dialysis treatment.
There are reports from a number of sources that police are hassling citizens in relative proximity to Tent Embassy - those who appear to be walking to it or trying to park their vehicles nearby - The National Indigenous Times has spoken to a couple of the complainants.
Nyoongar Alison Fuller set up a Tent Embassy in the south west's regional town of Bunbury in solidarity with Nyoongars against the state government's Native Title offer however she and others made the 180km journey to Perth to join the Mattagarup based Tent Embassy in response to what she perceived as excessive police intimidation.
"This is our country, our land, and people shall not be treated like this, our people have gone through enough," said Mrs Fuller.
Protestors stood face to face with police and told them to look in the mirror and described to them the shame of their actions, and that "you don't have to obey, you don't have to do this, you have a choice." The face-offs between police and rights activists are worrisome, and outsiders cannot understand why various authorities and police are not working to mediate, de-escalate and conciliate.
Elder Ben Taylor said, "What they are doing is not right, we have had enough, our people have suffered for far too long, we will do what we have to do for as long as we have to."
WA police spokesman, Inspector Bill Munnee said he respects the right to protest however he does not explain why it is okay for police to tear down tents which provide shelter from the elements however it is okay for young and elderly Nyoongars and supporters to sleep on blankets, mattresses and on the dank earth. "We are not here to take sides. We are here to keep the peace," said Inspector Munnee.
After the police moved in on the shell-shocked Embassy Premier Barnett publicly reiterated and affirmed that the Embassy needs to be shut down and that tents will not be allowed. Premier Barnett is yet to accept the offer from Nyoongar Tent Embassy Elders to meet with them and discuss the issues at hand. It is evident that Premier Barnett will not meet with anyone from Nyoongar Tent Embassy and instead good and passionate people will finish up arrested and possibly incarcerated - this is not indicative of a civil and just society said one onlooker.
Over the weekend Nyoongar Tent Embassy will grow, and some within the legal fraternity are expressing a willingness to support them, and public opinion is slowly but surely swaying away from the state government's and police's heavy handed tactics - Nyoongar Tent Embassy is doing it tough in the face of this duress nevertheless Tent Embassy is surviving.
"(The police) stomped all over our ceremonial fire - the fire is sacred to our peoples. Our people are here becase we do not want to see our mother lands sold out from underneath us," said Elder Taylor. "I have always we have been treated as if we never had anything and we were kept just out of sight and out of mind."
"We were fauna and kangaroo till 1967 when we were recognised as human beings. Now we got a voice and we're going to use it," said Elder Taylor.
Premier Colin Barnett and Perth City Council have painted themselves into a corner - they have said they will stand in the way of Nyoongar Tent Embassy at all costs.
Early Sunday morning, while folk were asleep Western Australian police officers marched into the Embassy and forced the protestors to pull down their tents. On the Tuesday the tents went back up. 9pm on Thursday night the police muscle, more than 60 officers, marched back in and the scenes were ugly. A man was arrested.
Police were issued with a legal notice of rebuttal by a Tent Embassy representative, which should have bought some time for Nyoongar Tent Embassy, said spokesperson Marianne Mackay however police did not care and dismissed it moving in to dismantle the tents.
There is a rising cultural wave of support for Nyoongar Tent Embassy - counterpart Embassies in solidarity are appearing throughout Western Australia - Nyoongar Alison Fuller has set one up in the regional town of Bunbury. The Embassy at Mattagarup (Heirisson Island) has drawn more Nyoongars, Elders and supporters - delegates from the South West Aboriginal Land and Sea Council (SWALSC) are turning their backs on SWALSC and joining the Embassy. Nyoongar academics and Elders are disseminating in the main news media their rising awareness of the issues with the state government's Native Title proposal - "It is not about what we will get but what we will lose." Polls of Western Australians are showing a distinct turnaround of support to those at the Embassy.
Many West Australians do not understand why Premier Colin Barnett and the Perth City Council will not allow the more sightly humanity of tents but don't mind mattresses and blankets at Heirisson and people sleelping on the cold dank earth.
In an unbelievable act of cultural insensitivity and a first in recent times anywhere in Australia a WA police officer walked over to the Nyoongar cermonial 'fire' and stomped all over it, putting out the ceremonial smoke which stirred indignation and resentment. A Nyoongar man tried to stop the heavy-handed police muscle and he was pushed back however he came up again and was then grabbed by the neck by a couple of officers and arrested.
The protestors would not pull down their tents and police pulled them down and took them away. They then marched off in scenes so ludicrous they appeared surreal.
Nyoongar Tent Embassy's Della Rae Morrison said, "We are not going away, we are staying. We are here."
As soon as the police muscle and council rangers left another tent went up.
Ms Mackay said, "These coppers, Barnett, the City of Perth, SWALSC they've all got it wrong - they think they can treat us like crap they've got another thing coming. We've been here for twelve days we'll be here for 112 days. We are now not only staying here, and putting up our tents and more people coming in support, we are taking them to court, we have worked on the legal side of things. Are they stupid, can't they see the support building for us? Don't they care what the people think? It's quickly being sorted that is not the Nyoongar people divided which is what they tried to do us but it is the Nyoongar people and the state government, and with growing sentiment many good people for injustices against us to be sorted."
South West Aboriginal Land and Sea Council CEO, Glen Kelly, has given a comprehensive insight to The National Indigenous Times about the Native Title offer from the WA state government to the Nyoongar peoples.
Mr Kelly said, "This is a much fuller explanation I have given to you than to any other journo, however as you work at the NIT, it is more pertinent to you as a long term development rather than a passing news grab."
"(It has been) a heck of a few days. I've received many messages of support from people who have a good idea about Native Title but obviously have been attacked as well. I don't have a problem with people contesting ideas - that is the point really."
"One of the main issues that we have is that people want Native Title to be about so much more than it is. I have sympathy for this, given history and what has effectively been invasion followed by state sanctioned attempted genocide followed by strong attempts to ignore this. Unfortunately for us though, Native Title doesn't give us the ability to deal with these issues, it's been wound up and restricted so tightly by the Federal Parliament and subsequent court decisions that making something out of it that is actually worthwhile is very difficult."
"For example, the original Mabo judgment did a number of things. First, it overturned the fiction of Terra Nullius and recognised the idea of customany land title where continued connection and practice could be established. Establishing this has turned out to be extremely difficult due to court precedents," said Mr Kelly.
"I have no idea why European Australians were protesting about Mabo in the first instance, as it affirmed crown sovereignty over Australia and recognised the crown as holding the radical title - the underlying title - of all of the land. In effect, it legitimated the invasion. It then set out that Native Title was subject to the laws of the Crown and set out that actions of the Crown could extinguish Native Ttile. Somewhat conveniently for the Crown, it then turned out that compensation for the loss of Native Title rights could only be compensated if it occurred after the advent of the Racial Discrimination Act of 1975. As a result of this, Native Title was never going to get anyone reparation for invasion."
"In a further convenient development for the Crown, it turns out through the Court finding that Native Title is not a property right, rather it is a bundle of rights, that is the right to undertake customary activities on land where Native Title had not been extinguished and in the event that Native Title rights came into conflict with pre-existing land uses - for example logging in the south west of WA - Native Title gives way," he said.
"In the middle of this, John Howard also had his way by amending the Native Title Act to schedule a whole lot of things that extinguished Native Title. They had to suspend the Racial Discrimination Act to do this - very convenient for the Crown again. The state agreement acts for Worsley and Alcoa for bauxite in the hills are in the WA schedules of the Native Title Act, and therefore extinguish Native Title - which is why I made the comment that the extinguishment map I have sent you greatly overestimates where Native Title actually exists. To make matters worse on this mining in the hills, the state agreement acts are all before 1975, and therefore non-compensable," said Mr Kelly.
"All this means that we are not left with much. It also means that Native Title has not fulfilled the hopes that any of us had for it from the outset and it is more accurate to now say that Native Title is not Aboriginal law, it is whitefella law that very effectively manages down Aboriginal peoples dreams and aspirations for real justice. When you look at it from a legal perspective, it is actually a weak set of rights that are fragile, fragile in that they can be over ridden easily."
"SWALSC's role then is to provide legal advice which is in keeping with the legal reality of the claims we represent. The legal advice then is that the claims, even if successful in the Courts, would have not resulted in any rights for the vast majority of the Noongar people. This would have the effect of entrenching the dispossession of the Noongar people as a legal reality for all time. Noongar people would also be compensated for only a very small portion of extinguishment - as most of the south west extinguishment occurred well prior to 1975 - and would receive this compensation probably twenty years into the future due to the exhaustive land parcel by land parcel analysis required to establish when the extinguishment event occurred."
Mr Kelly continued, "None of these are attractive prospects. When sitting in a position to know the legal reality of Native Title and the legal reality of peoples' Native Title claims, it is important to tell people this honestly. I and SWALSC could very easily take the more popular path and gee people up for a fight against the State in the Court, however if we won, people would soon realise they have won nothing."
"As such, it is incumbent on us to seek an improved resolution to the legal claims before the Federal Court. This is the basis of the agreement. The proposed agreement is an area agreement under section 24CB(e) of the Native Title Act. This requires the surrender of the remaining Native Title rights that may exist. This is a challenge for people and we have railed against the word 'surrender' as what we are engaged in is actually an exchange as as the state is set to surrender much as well. Unfortunately, this is once again western law coming into Native Title meaning that the quite offensive word 'surrender' is unavoidable. Even so, it is more accurate to describe what is proposed as an exchange," he said.
The National Indigenous Times has read the Heads of Agreement contract between the government and SWALSC where two years has been allocated for the proposal to be put together, and where either party can terminate the agreement with fourteen days notice. The National Indigenous Times has viewed some of the information that underwrites the proposal.
The SWALSC rationales include the foundation that the vast majority of Native Title rights in the south west of Western Australia are extinguished. According to SWALSC this is especially so in Perth, its surrounds and the Wheatbelt and the Great Southern. According to SWALSC this means that even with a successfully prosecuted legal case, most Noongars would have no Native Title rights. The vast majority of the extinguishment occurred prior to the advent of the Racial Discrimination Act, meaning that it is non compensable. The Crown reserves in WA, in the main, extinguish Native Title.
It is argued that the role of Government is not going to be 'taken over' by anything that comes out of a Native Title settlement. According to SWALSC Native Title does not garner people the price of the land, it is the consideration of the legal obligations the state may have in the instance of a successfully prosecuted claim. Native Title does not answer questions of sovereignty - the original Mabo judgement saw to that. What has been proposed has been based on successful Native Title settlements from overseas, according to Mr Kelly. The purpose is not to take over government, but to develop a cultural and social infrastructure which will enable Noongar people to reinvigorate cultural passage, re-establish ceremony, re-establish language, connect people to country and in general, to become a strong people who have a stake in today's world and have the power over their own affairs, said Mr Kelly. He said this last part shall be enabled through the development of an independent income stream.
So what does the offer actually contain? According to Mr Kelly it contains recognition of Traditional Ownership. An Act of parliament, locked in through an ILUA and ratified in the Federal Court so that it can't be modified or revoked without the specific permission of the Noongar people. The intent of the Act would be to formally recognise the Noongar people as the traditional owners of the south west, as a people with a live and ongoing culture and as a people with ongoing connection and responsibilities to land.
In terms of Customary Rights the offer sets out that the customary rights set out in Native Title will be recognised on all crown lands, ignoring extinguishment. Mr Kelly said this will be particularly significant in Perth and surrounding areas, where customary rights to the Swan River and the surrounding lands will finally be recognised in law and able to be properly enjoyed by the traditional owners of the country. This will also embed cultural outcomes through furthering connection to country and land management using traditional knowledge in a settlement across the south west.
As extinguishment in the south west is so extensive, according to Mr Kelly, only very few Noongar people would actually have these rights and in most cases, partially extinguished. Mr Kelly said it is worth noting that many crown reserves (national parks, nature reserves, water reserves) extinguish Native Title and even in areas of state forest, mining state agreement acts from the 1960's extinguish large areas of native title. According to Mr Kelly there is far less land where customary rights could be exercised than in a successfully prosecuted court case.
According to Mr Kelly, Noongar people currently hold no land. The offer sets out that a large amount of land will be transferred into the Noongar estate for cultural, social and economic reasons. At present, Noongar people have identified large areas of very high cultural significance to be transferred into the care, control and ownership of Noongar people. More is being identified, and once again, in the Metropolitan area, there is a very good opportunity to secure significant areas of land, particularly in the Swan Valley if the traditional owners should wish this to be the case.
SWALSC argues that developing a land base is critical to further enable cultural outcomes to be embedded in any settlement that may occur. It also allows for economic outcomes on those lands which have not been transferred purely for cultural and social reasons.
SWALSC believes that National Parks are very significant in the south west. Although they extinguish native title and have historically prevented access to Noongar people, in some areas they are the last areas of uncleared land giving them high significance in cultural and environmental terms. WA has finally passed legislation which allows for joint management. While it is obviously for the entire state and in Mr Kelly's view, is a model which is somewhat cautious, it allows for some very robust outcomes he said. Through this settlement, Noongar people will be installed as joint managers of National Parks, and will be able to ensure that Noongar sites and landscape values are properly managed for. In addition, it will allow for the employment of a significant number of Noongar people from on ground land management through to the higher echelons of the land management agency, the Department of Environment and Conservation.
There is also a critical cultural function here, as joint management of national parks and protected areas, coupled with customary access to these areas, will allow for more adequate connection to land by Traditional Owners and access to areas that people have been locked out of for many years, according to Mr Kelly.
The future Acts regime of the Native Title Act is complex and wasteful of resources, said Mr Kelly. In the south west, we deal with more than 1000 future Acts a year, probably only 3 or 4 each year are actually worth it and return actual benefit to the community, he said. The offer maintains as a standard the most significant of the future Acts that are processed, that is, a percentage of land release on crown land. This means all crown land, ignoring extinguishment.
Mr Kelly said at this point they have not been successful with mining given it is undertaken by private companies. He said this is balanced by the fact that the overwhelming majority of mining in the south west is conducted on land that is extinguished of native title and SWALSC and Noongars currently have no rights to negotiate. Currently, income to claim groups from mining native title groups in the South West is about $2 million per annum (a stark contrast to the Pilbara), meaning that it would take 350 years at current levels to draw the same benefit from mining compared to the monetary amount on offer. Further, part of the monetary offer is in compensation for loss of the future Act regime.
Rights to negotiate on lands where Native Title is not extinguished - Mr Kelly said this would include land release and mining. Given the extent of extinguishment, it is important not to overstate the value of the right to negotiate, he said.
Current heritage management practice is problematic and there is a high degree of cynicism within the Noongar community that heritage will actually be protected due to the shortcomings of WA's Aboriginal Heritage Act, he said. This has created a system with perverse incentives which does little to actually protect, promote knowledge of and gain appropriate management of Noongar heritage values. Although SWALSC remain within the confines of a far from perfect heritage Act, he said, the offer contains strong protocols to guide how the process of heritage consultation should progress and stronger management outcomes when significant areas of heritage value are identified and articulated.
Mr Kelly said it is very important that SWALSC strengthen the protection of Noongar heritage. Not only does it serve a critical cultural function for Noongar people, it tells a story about the land and the people which others need to appreciated. It is this type of outcome that is sought in robust heritage protocols.
When a Native Title claim is settled, the rights and interests are vested in and governed by bodies corporate. The proposal sets out that as normal, each claim area will be required to develop a body corporate and in addition there will be a central body to provide assistance in the opening years given the failure rate of bodies corporate. These will all be resourced said Mr Kelly. The role of the regional bodies corporate will be to oversee the joint management arrangements, heritage protocols, customary access and use, land base and those things pertaining to traditional ownership and assisting traditional owners. The central service organisation will be responsible for providing assistance (legal, HR, accounting etc) as well as developing cultural materials from the evidence gathered for native title be be delivered through the regional corporations. Mr Kelly said this will effectively be the Noongar cultural infrastructure, and the regional corporations in particular will be able to support cultural programs which will lead to a stronger and more secure Noongar culture as well as strong advocacy of Noongar interests in a variety of areas.
Mr Kelly said much of the community development programme is up to the priorities of the Noongar people. He said, it is not the intention that the role of Government will be taken over, rather, the community development program is to address those social and cultural needs that Noongar people have that are not supported by Government and are within the responsibility of Noongar people themselves. As has been ably demonstrated in other settlements, he said, that have set out with the same vision, when the people themselves are able to deal with the cultural and social concerns they have on their own terms, the nation builds strength, grows and takes power within the world at large. This is a very important outcome for Noongar people, who wish to be the masters of their own destiny in the world as it is today based on strong culture and connection to land. In essence then, the community development program is to address the human needs in terms of culture and society that Noongar people have, which will be the bedrock for future Noongar strength, according to Mr Kelly.
The monetary amount that has been put forward is not the price of the land of the south west, according to Mr Kelly. He said if only Native Title allowed for that!. Rather it is the consideration of the legal obligations the state may have from a successful native title claim in the South West as in compensation for loss of extinguishment (post 1975) as well as compensation for the removal and replacement of the future Acts regime plus additional monies. Mr Kelly said he has much more to say about this however does not wish to compromise SWALSC's negotiation position.
The main amount of money is to be managed as a fund normally is, that is invested appropriately to garner returns and provide an income for the corporations to do their business. This fund matures after 10 years, and in the time prior to this fund maturity, the State will provide additional monies to fund the operation of the corporations.
Mr Kelly said SWALSC has been told repeatedly by Noongar people to create an income for the Noongar nation that would allow Noongars to be as independent of Government as possible, to support culture and to support people. "We are currently analysing the offer to come to a conclusion whether the amount on offer can do this," said. He cannot stress enough that Native Title does not garner the price of the land. This is beyond the reach of Native Title and those that feel it should will be disappointed by Native Title. He said, even so, Native Title provides a vehicle to achieve certain things and strengthen a nation, which will assist us to take on those remaining areas of justice that are unresolved.
Compensation for post 1975 extinguishment said Mr Kelly would be a limited amount of money and can only occur after exhaustive land parcel by land parcel research to establish when the extinguishment event occurred. He said this could be expected to take (without exaggeration) some 20 years given that all parcels of land in the region would need to be gone through, that is, all house blocks across the entire SW including Perth, all farms etc.
Mr Kelly pointed out the proposal is far from finalised yet. They have received some very robust feedback from quite a few people which is guiding them in the next phase, he said. "During this, we will also be providing our legal advice and analysis of the offer to as many people as possible."
Mr Kelly said, "If Noongars in the end wish to choose litigation (which can potentially be lost with no recourse) then that is the choice of the Noongar people. If on the other hand people agree to an out of court settlement, then so be it."
"It's certainly going to be an interesting time, however we will just be sticking to providing the legal advice which we need to and seeking that as many people as possible know the limited reality of Native Title," he said.
After the Kings Park function centre incident where Premier Barnett was holed up with his staff for half an hour while 40 Nyoongars protested outside, a Nyoongar Tent Embassy was pitched outside state parliament - two hundred supporters came through however the embassy was pulled down three hours later so it could be discussed with Elders.
Nyoongar rights activist Marianne Mackay promised the Nyoongar Embassy would return.
On Sunday February 13, Nyoongar Elders met at historic Heirisson Island just outside the heart of the Perth CBD and after listening to everyone they decided to support the pitching of a Nyoongar Tent Embassy on Heirisson in order to highlight inadequacies in the state government's Native Title proposal.
Highly regarded Nyoongar Elder Ben Taylor said he supported Nyoongar Tent Embassy. "We want the power to run our own lives. We want our lands," he said.
Nyoongar Elder Vanessa Culbong said, "Grassroots Nyoongar people and the local Elders support the Embassy and we will stay for as long as it takes."
Former ATSIC commissioner and Nyoongar Elder, Spencer Riley said, "The Native Title proposal is unfair and like a ration order. A lot of Nyoongar people are actually very unhappy about it."
The principal negotiator of the proposal, South West Aboriginal Land and Sea Council (SWALSC) CEO Glen Kelly said the deal is far from over and that everyones input is welcome. He said there are months of consultations with Nyoongar peoples.
One of the campers is Nyoongar Greg Martin, still remembered for the camp he and other Nyoongars coordinated in 1989 at the Swan Brewery site, at the bottom of Kings Park, which was an Aboriginal burial site - They camped there for nine months and into 1990 - some of them arrested. There was a massive police presence from the sea, air and Kings Park escarpment monitoring them - who can forget?
Swan Basin Native Title claimant, Nyoongar Elder Bella Bropho said, "We welcome everyone to the camp, all support is valuable, even if you can only come for a little while - there is tucker for everyone."
Ms Mackay, mother for four, has her youngest children with her, and said, "We need to protect our peoples' rights and we'll stay for as long as we have to."
Premier Colin Barnett has said he did not feel threatened by the protest at Kings Park Fraser's restaurant and function centre however some of the protestors were condemned. There has been condemnation and other reaction from Nyoongars and West Australian Aboriginal peoples.
South West Aboriginal Lands and Seas Council (SWALSC) CEO, Glen Kelly said, "Many delegates inside were angry with them and their behaviour. (The protestors) were a disgrace, they abused and threatened and intimidated Elders and women."
Broome-based Nyinkiny Aborginal rights advocate and economist, Sofia Mirniyinna said, "That's all we need, Indigenous angst, people turning on each other and feeding into the conquer and divide mindset. There is nothing wrong with confrontation and outrage as long as there is no violence. Like the Lobby restaurant there was only peaceful outrage at Frasers however we can all do without racial slurs."
WA state opposition Indigenous Affairs and Treasury portfolio holder Ben Wyatt got under the skins of protestors and delegates, "I don't believe that sort of behaviour nor those views are helpful in resolving the long-standing dispute between the Nyoongar nation and white Western Australians in the south west."
"The protest will feed a view in the community of the ungrateful aggressive blackfella but I think the general view over the native title has matured in the community. Hopefully, Australans see that these people do not represent a significant group."
Mr Wyatt, whose father Cedric is a Yamatji man from the state's midwest, upset some Nyoongars when he marginalised the Nyoongar protestors with comments that they are on the fringes and engaging in tactics that are rejected by the majority of Aboriginal peoples.
Nyoongar Professor Len Collard said, "Ben has to be careful with his language and in what he is saying, why he is saying it. He has no business to marginalise peoples."
A Nyoongar delegate, among 150 who attended the Fraser's meeting with Premier Barnett and Mr Kelly said that there were many inside who were not happy with the offer and who supported the protestors' sentiments. Wayne Webb said, "I can understand why they are angry because the land council doesn't talk to all of the people. Our family will be saying 'no' to the deal until everybody is involved."
Mr Webb said Mr Kelly was a "puppet of the government and he condemned Mr Wyatt's comments. "(Mr Wyatt) has never had to live like a blackfella."
Nyoongar activist, and one of the protestors, Marianne Mackay said, "Who does Ben Wyatt think he is, did you hear what he said about us? How dare he?"
Mr Wyatt has desribed the billion dollars proposal as a good offer and state Labor is demonstrating bipartisan support for the package.
It was mayhem inside and outside the Kings Park Fraser's function centre as angry demonstrators, mostly Nyoongars, heckled the State Premier Colin Barnett and ministers that accompanied him and South West Aboriginal Lands and Seas Council (SWALSC) CEO Glen Kelly over the proposed one billion dollar Native Title offer.
The demonstration was reminiscent of the Lobby restaurant incident in Canberra where Aboriginal demonstrators from nearby Tent Embassy expressed civil outrage to comments by the Federal Opposition Leader, Tony Abbott. On that occasion the Office of the Prime Minister had generated the protest however on this occasion it was organised by Nyoongar Elders of the Swan River Basin.
40 Aboriginal demonstrators convened at Kings Park at 8am on February to speak to the news media about their dissatisfication at the SWALSC negotiations with state government which they perceive as a sell-out, and of the proposal as 'paltry' and the enshrining of the permanent disenfrachisment of their peoples, according to Elder Richard Wilkes and Nyoongar academic Professor Len Collard.
Inside the nearby Frasers function centre were nearly 150 Nyoongar delegates listening to Mr Kelly and Premier Barnett and his ministers, including Indigenous Affairs Minister Peter Collier, unfold a little more detail or the promise of it over time from the one billion dollar Native Title proposal.
Once Nyoongar protestors noticed Mr Barnett inside and about to leave they came to the windows of the function centre and chanted. This sparked a security scare reminiscent of the Lobby restaurant incident and as a result Mr Barnett and his ministers and aides decided to hole themselves up in the foyer of the function centre for half an hour while protestors chanted from above and could be seen through the floor to ceiling windows.
Protestors included Lobby restaurant veterans Nyoongar Marianne Mackay and Charley Caruso, amongst others. Miss Mackay said, "This is our land, it is not to be sold out from under us, we will have nothing left for our peoples, this is wrong, they can keep their money."
Unlike the Lobby restaurant debacle security minders and police in single lines either side however without any remonstrations to the protestors escorted Premier Barnett and his staff to waiting vehicles - there was no threat of any violence and only angry words and some derision. A couple of protestors called out, "racist" and one protestor called out "racist dog" which was picked up as a talking point with Perth radio shockjocks.
Elder Wilkes said he was disappointed with some of the protesting, and that some of the protestors went too far with racist slurs and derogatory comments and that the Premier should not have been made to feel that he had to wait out the perceived predicament however Elder Wilkes said the predominant issue was the wrongfulness of the Native Title offer and the damage it would do Nyoongar peoples.
The dispute is dividing the Nyoongar community and with more people taking sides however also with more people expressing a wish to know more including those who are delegates of the SWALSC. Many of the 150 delegates had turned up to Frasers to learn more and ask quesitons and some said they had not made up their minds. Miss Mackay's own father, Mr Headland, and Miss Mackay is Aboriginal from her father's side of the family, was inside Frasers as one of the delegates while his daughter protested outside and who later in the afternoon set up a preliminary Nyoongar Tent Embassy near the steps of state parliament. Nyoongars came from everywhere after the news of the morning protest and nearly 200 marched to state parliament. The Embassy lasted three hours however Miss Mackay promised it would soon be set up permanently.
Premier Barnett described the meeting with delegates from the six Native Title claimant groups as a good start.
"There is a lot of detail to be discussed in the coming months but I am optimistic and I think the Nyoongar people are optimistic that we will reach an agreement this year," said Premier Barnett.
Who is Glen Kelly? He is the Nyoongar CEO of the South West Aboriginal Land and Seas Council (SWALSC) and the chief negotiator on behalf of 37,000 Nyungars with the state government over Native Title.
Mr Kelly was given authority to act on behalf of the Nyungar peoples by a majority decision from a delegation of nearly 300 Nyoongars at a meeting last year, in March, in Perth.
However, Swan River Basin Native Title Claimants, Elder Richard Wilkes and Elder Albert Corunna say he has no right to do this and that in Nyoongar culture and governance it is the Elders who represent the views of the peoples and who make the decisions for the peoples after consulting within their community.
Mr Kelly said he is in no position to allow them what constitutes a 'veto' and that times have changed and Nyoongar peoples have to secure what is best for the future of their children.
"I am a Nyoongar, I have been negotiating this for two years and the detail is yet to unfold, however we have to live in the real world, and Elder Richard needs to understand this," said Mr Kelly.
Mr Kelly has borne the brunt of abuse from detractors, from Nyoongar members and community groups who are dissatisfied with the Native Title offer, however he acknowledges that it comes with the territory and that he understands their feelings and views. He is quick to point out that the majority of Nyoongars are on board with moving foward with fine tuning the offer.
Mr Kelly has been derided as a government mouthpiece, a turncoat, a sell-out, and even worse as a part time Aboriginal, a coconut, and an Uncle Tom.
Mr Kelly has upset Nyoongar Elders when he said they live in the past and that they do not understand Native Title.
Elder Wilkes said, "Glen Kelly needs to have a good look at himself. I don't need anyone to tell me about Native Title and of my Aboriginality. He needs to respect our culture and our laws, our peoples or who does he think he represents?"
"It is fine for Glen to make this decision with government when he only learned he was part-Aboriginal a few years back, and became Aboriginal 2 and 1/2 years ago, however we have been Aboriginal all our lives. He can't tell me who I am or who my people are," said Mr Wilkes.
Mr Kelly is not impressed by the slurs and indeed may hide some of the hurt however he has a job to do as CEO of SWALSC. "They can't argue on the facts so they resort to cheap shots, that should not be on. We are working for everyones best interests and not to be relegated into the page of history," he said.
39 year old Mr Kelly is an environmental scientist from Pemberton, where he spent his childhood, from a working class and farming background. He grew up quite close to one of his grandparents, his Nyoongar grandfather who lived just outside of Pemberton, however when together he was taught some of Nyoongar culture and of the spirits.
"He passed on to me all sorts of knowledge about bushcraft, country and about reading the ground, fire - the living knowledge handed to me by him and by my mother, who also has a superb traditional knowledge of fire," said Mr Kelly.
"My grandfather and my mother taught me this is our country, we are Nyoongars, this is our land, this is how we live."
Mr Kelly's views of the world were added to by his university experience and by living in Perth where he learned more of Aboriginal disadvantage and was shocked by the appalling witness of life for many urban Aboriginal peoples.
"I've got Nyoongar and European heritage and I was trying to come to grips with the way the world viewed Aboriginal peoples," he said.
He said that when he was a university student he was filled with anger at the maltreatment of Aboriginal peoples, he hated the governments, the establishment and in those days he was the protestor type and therefore understood the protestors outside at Kings Park.
However he learned to move on from the anger and towards resolution. "I worked out that I have a mixed heritage and I am fortunate to have all this Nyoongar knowledge however I also love my dad and I love his family and I have inherited some really great things from that side as well," he said.
Mr Kelly said one cannot be motivated by hate. "You have to be motivated by the love of your family, and the love of your people and of your country. If you are motivated by the hate of everything else, you are just going to sink yourself into an early grave and not achieve anything."
"I go to work each day motivated by the best interests of Nyoongars, and I go to work each day get Nyoongars the best possible outcome," he said.
The state government's Native Title offer includes a half billion component of lands. However much of the land is in the perpetuity of joint conservation management. South West Aboriginal Lands and Sea Council (SWALSC) CEO Glen Kelly said he is pursuing customary rights over all crown land ignoring extinguishment.
Nyoongar Professor Len Collard, "Pursing customary rights is all well and good, however we have these in one way or another, and it's token to argue this as some great benefit for our peoples. We have customary rights no one can extinguish this, however what we don't have is reparation, and the return of significant lands."
The agreement would prosper significant influence over the management of national parks in WA's south west, including fire management and prescribed burnings, and access to protected areas.
Nyoongars would make make up to half the membership on boards overseeig the agreed conservation estate which will be managed by the Department of Environment and Conservation, high profile parks in the Stirling Ranges, D'Entrecasteaux, Leeuwin-Naturaliste and Yanchep.
In the event of an agreement tourists would find Nyoongar and English signs in all parks and high proportion of park employees will be Aboriginal, employed by the Department of Environment and Conservation (DEC). Pro-social Aboriginal employment polices are to be a feature of the Native Title agreement, according to Mr Kelly.
"If agreement is reached DEC will employ Aboriginal peoples from park rangers to carpenters, and in management," said Mr Kelly.
However areas managed by independent trusts, including Kings Park, the Swan River, Rottnest Island and Bold Park, would not be included in the proposed deal.
"However we are working for customary rights ignoring extinguishment. In rare instance Nyoongars may be given access for customary rights in closed areas. We are working on everything we can get for our people," he Mr Kelly.
"The first test case would probably be the Fitzgerald River because the Nyoongar connection and knowledge to that national park is really good," he said. "It's remote which means it can happen without interruption, and it is a bio-diverse area. Noongars from that area are really keen for it to be managed really well for its biodiversity as well as its heritage."
Funding for the DEC component, including money for infrastructure and employment support needed to make the proposal a reality, has not been included by government into the $1 billion proposal.
Conflict in the Nyoongar community continued with the Bunbury region's Goomburrup Aboriginal Corporation slamming the offer a sell-out.
Goomburrup chairman Jim Haynes said the proposal looked like "nothing more than go away money" to extinguish native title rights.
"Nobody has the right to sign away our children's birthright," he said.
The South West Aboriginal Lands and Sea Council (SWALSC) has come under fire from Nyoongar Traditonal Owners, Native Title claimants and academics for what they say is a paltry billion dollar offer and sell out to the West Australian state government - and which will extinguish what is left of their rights to their lands.
Swan River Valley Trust member Elder Richard Wilkes said, "They're giving away our land, which they do not have the right to do for some money,we don't want which anyway is a drop in the bucket, and then what will happen to our youth and our people and our customs and our history?"
SWALSC CEO, Glen Kelly, "They do not have the full details to the offer, there is much more in it than they know, and we will fight for their rights too, rights which they do not have at this time. We will do our best for them however they just do not understand what Native Title is and they have got it all wrong."
Mr Wilkes said that SWALSC had no right to discuss the Swan River basin which is his heritage and from whose peoples he is directly descdended from. "Nobody knows how the SWALSC committee cooked up this deal with government - they're taking us back to the Native Welfare days with handouts and governance over us that in turn will neglect our people."
"We don't want the money, we want our lands, our heritage, our past, and to have that past into the present and into the future," said Mr Wilkes.
Mr Wilkes said he, Bella Bropho, Greg Garlett, Albert Corunna, Victor Warrel, Clare Davis and Kathleen Denny are the legitimate Native Claimants for the Swan River Basin and as upheld by the 2006 High Court ruling from Justices Wilcox and Beaumont. "SWALSC has not consulted us at all," he said.
Mr Kelly, "We met with 300 Nyungars in March last year in Perth and we received their authorisation to proceed - we had overwhelming support to do so. All those people you mentioned were there. What they want is to have a veto, well I am not in the position to give them that, it cannot happen."
"What they don't understand is that their right to Native Title, their lands have been extinguished by nearly two hundred years of development, and by a Native Title that John Howard and others buggered up and they can dream all they like they will never get Native Title over those lands, they will not get Title over the metropolis," he said.
Swan Valley Nyungah community leader, Elder Bella Bropho said, "They're giving everything away, our culture too. They haven't even secured royalties and dividends for when the pittance money is used up. It's whitewash stuff to make the government happy, and all the while we're in the Federal Court over the Swan Valley."
Mr Kelly said that there is more detail in the offer, which covers 'royalties and dividends' and from the near half a billion monies over ten years they invest in income bearing opportunities.
Nyoongar Traditional Owner and academic Professor Len Collard said, "They can say they will invest monies all they like, but this money is too small, a couple of buildings in the Perth metro, for land that stretches from Jurien Bay, to Hopetoun and out to Kalgoorlie. What sort of deal is this? When the money goes, which it will, who will be held accountable in a generation for this pretty poor deal? No one will be able to help Nyoongars then. The government won't help our people because we won't have anything to argue with because it was all signed away."
Mr Kelly said that land use opportunities and programs are in the detail of the offer.
In the heart of the Swan River Basin a protest was held by Swan River Native Title Holders on Wednesday 8 February. Mr Corunna and Mr Wilkes spoke to a large gathering at Kings Park, on the hill overlooking the Swan River and the city of Perth.
Mr Corunna said, "We will not surrender our Native Title rights, our land and our culture of the Swan River claims area."
Mr Kelly said, "I'm a Nyoonar, I'm from Perth, I have to work with reality and a Native Title buggered and decimated by so many before us. As it stands the land these people are arguing for in the Swan Basin are extinguished in terms of their rights and under the law they are not compensatable. Though there is land in the offer, and lots of it, the land that we can work through Native Title is divided forest strips from Mundijong, north west of Perth to Nannup, in the heart of the south west. However even that is littered with bauxite mining agreements."
"We will create programs for our peoples and it's in the detail."
"And if they let us we can help these people complaining now, who are ill informed. In the detail we are working to secure Customary Rights on all Crown lands ignoring extinguishment. Therefore we may be able to secure Customary Rights for them in their areas and help them secure a significand land base as well."
The West Australian state government has made a billion dollar offer in money and land valuation to the Nyungar peoples of Perth and the rich south west to settle the drawn out Native Title claim.
There are 34,000 Nyungar peoples and who are nearly half of West Australia's Aboriginal population and who for more than 60,000 years were the custodians of their lands.
The South West Land and Sea Council (SWLASC) has spent years in trying to reach a satisfactory agreement with the state government over Native Title rights.
Premier Colin Barnett's offer is yet to be officially disclosed however it is understood to be more than $500 million in cash to be disbursed over a ten year period to the 34,000 people who have identified as descendents of the Nyungar nations.
If the offer is accepted, it is understood that payment of thereabouts $50 million to $60 million will be made per year, acquitted by financial managers via locked trust accounts and the monies used as an economic investment for Nyungar peoples for future purposes.
Up to 200,000 hectares of unused crown land will be signed over to the Nyungar peoples through a Nyungar land estate for development or conservation - and will include lands freehold, reserve and Aboriginal Lands Trust lands.
The state and commonwealth will fund a new corporation of Nyungar leadership, with members elected from the six areas deemed in the 'Single Noongar Claim' which constitutes 185,000 sqkm area including metropolitan Perth and north to Jurien Bay, east to Merredin and south to Hopetoun. An annual $10 million self governance structure shall oversee the corporation which will have the opportunity to manage cultural and social programs and decide on land use.
In order to secure this offer from the government there will be some specific joint management of some areas and the SWALSC would have to surrender claims to Native Title.
They would have to settle for a symbolic Act from parliament which would decree recognition of Nyungar peoples 'as the original inhabitants and Traditional Owners of the South West...'. They would have to make other concessions too, including that there would be no royalties to anyone.
Further restrictions include that capital in the future fund account, which will have $50 million to $60 million put into it each year, cannot be drawn down until the end of a ten year period, in which time it is hoped that the fledgling corporation would have settled its governance structures and given rise to various self funding measures, investments and programs.
The government's offer has taken two years of behind the scenes negotiations between them and the SWLASC, after years of urging in the public domain by SWLASC and drawn out court proceedings with a 2006 Federal Court ruling declaring Nyungar title. However, as per usual, this was overturned and more court proceedings eventuated.
SWLASC chief executive Glen Kelly said all Nyungar people would benefit. He said it did not matter whether they were part of the claim or not however he said that nobody would receive cash, something that many Nyungar claimants believed would be the case and that they were hoping for to help them with personal advancement.
"What we're trying to do is to set up our cultural, social and economic infrastructure in a way that works today so that we can become a strong people again," said Mr Kelly.
Premier Barnett said that there has never been a Native Title settlement on this scale dealt with or sorted by any Australian government, and that the magnitude of the claim and the offer is a 'first'. He said that he felt this settlement gives rise to security to farmers, pastoralists and businesses and that it is a final offer, that there is nothing more to be added to it.
He said, "At the end of this process, in addition to lands, the Nyungar people will have hundreds of millions of dollars to benefit their people."
"It gives them an act of self-determination to achieve some economic independence, and the opportunity for the Elders and leaders to regain some control of Aboriginal people."
Shadow Indigenous Affairs and Native Title and Treasury spokesperson, Ben Wyatt, himself a descendent of Yamatji peoples, spoke positively about the government's offer.
"The way the state government has handled this claim has been incredibly admirable and it sounds like the Nyungar people have a very strong offer to consider and resolve what really might be the most important Native Title claim in the state," said Mr Wyatt.
"It is the Nyungars who felt the brunt of colonisation and the full extent of extinguishment of their Native Title. In Native Title, the courts are now only a place for delay, expense and broken relationships."
Article on the Native Title offer by Associate Professor Len Collard and Gerry Georgatos published in The West Australian: